By Louise Arbour
27 April 2011
At no other time in recent history has there been as much hope and promise for the people of the Arab world to obtain the full enjoyment of their rights as citizens. This is so primarily because they are claiming their rights, loud and clear, and also because they are getting a response, sometimes loud, sometimes not so clear.
Anyone commenting on these unfolding events would be wise to do so modestly, prudently, and with an open mind. There are similarities but also many significant differences between the various uprisings, and between their transformative potential. After the initial shock wave of Tunisia and Egypt, in retrospect, they now seem the easier cases (which is a different thing from saying that they are easy cases).
The transformation of protests into an armed insurgency in Libya and the effect of the international involvement there; the sectarian undertone of the government’s response to the protests in Bahrain, the multiplicity of actors in Yemen and the regional implications of the future of Syria make these more complex, less predictable and, in the cases of Syria and Bahrain, potentially more significant in the broader regional context.
Yet they have much in common, the main thing being the amazing demonstration of the idea that rights withheld will be taken, not just claimed. That idea, of course, is at the heart of the Universal Declaration of Human Rights which holds that:
…it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights be protected by the rule of law,
To a considerable extent, the people of Tunisia, of Egypt, of Libya and elsewhere are taking back from their authoritarian masters their basic right to self-determination which encompasses all their fundamental human rights and freedoms, under the unifying idea that they are entitled to control their own destiny. It is the beginning proposition not only in the UN Charter but can also be found in the fundamental human rights instruments:
All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
In doing so they have shattered many myths. Some are obvious: the importance of personal leadership (none was required, or leadership was very diffuse – at least in Tunisia and Egypt); the agenda setting role of the indispensable nation or nations (the movements were indigenous); the centrality of the Israeli/Palestinian conflict in Middle East politics (demonstrators mostly focused on corrupt governance and lack of opportunity, and while the position of Mubarak, for example, on Israel may have been unpopular, policies on Israel did not take centre stage); the stability of authoritarian regimes (self-explanatory); the subversive force of radical Islam (none of the revolts were religiously inspired and, as yet, the Islamists participation in political life is still unscripted).
On the other hand the uprisings have in turn created their own new mythology: that of the revolutionary impetus provided by the new social networks. WW2 was said to be the war of the radio; the Vietnam war was the war of television; the first Gulf war was the war of CNN and rolling news networks; the wars in Iraq, Afghanistan, and the civil conflicts in Iran, Sri Lanka, and Thailand were the battles of the internet era, and now this: the social networks. But while Twitter and Facebook facilitated the unfolding of these mostly leaderless movements – in particular in mobilizing protesters – and while they have become a powerful means of transmitting the voice of civil society, these instruments do not make revolutions: injustice does.
In that sense the events in Tunisia, Egypt, Libya, Yemen, Bahrain, Jordan, and similar events that could take place in Saudi Arabia and elsewhere may represent the first revival of a genuine international human rights agenda, characterized, at it should be, by people feeling empowered to claim their rights, rights that are universal, not culturally specific, in revolt against, essentially, injustice. Although they may not cast it that way, it seems to me that what the insurgents have in common is not just rebellion against political repression and authoritarianism, but that combined with unconscionable economic inequities, themselves rooted in corruption rather than in any claim of merit. It is tempting to downplay the significance of one or the other factor. But it is truly their combination that is lethal to the oppressive regimes.
So we see at play in North Africa, and increasingly more broadly in the Arab world, what their authoritarian masters had always been hard at work to deny: the universality and indivisibility of human rights. While occupying a seat in the Human Rights Council, representatives of these very regimes, Egypt being probably the most blatant example, purported to champion human rights, but recasted these rights in what they said had to be a culturally sensitive context, which allowed them to reject, as exclusively western, the idea of gender equality, for instance, and the most basic political rights and freedoms.
Rather they purported to champion economic and social rights, and the right to development, in an effort to shame western countries, most of which while not recognizing the latter had, in fact, recognized the former to a far greater degree. It will be interesting to see what impact, if any, the revolution in Egypt will have on the Human Rights Council and the generally febrile nature of current inter-governmental human rights discourse with its easy recourse to finger pointing and accusations of double standards as preferable to action.
In their rebellion against tyranny, the people of North Africa and the Middle East have shown not only the mediocrity of their systems of governance but the poverty of the international framework of human rights protection. International human rights law imposes a series of obligations on states for the benefit of individual rights holders. Some of these obligations are framed negatively: states should refrain from torture, arbitrary arrest and extra-judicial executions. Some are framed positively: states must provide adequate standards of health, education and shelter, as well as political participation and basic freedoms. What the system does not provide is an adequate forum for enforcement of these rights.
It seems self-evident that the duty-bearers (states) should not have the monopoly over the adjudication of whether they adequately discharge their obligations. In democratic national systems, in fact in almost all legal regimes, democratic or not, this is what courts do, for better or worse. Ideally fully independent organs of governance, courts adjudicate disputes between rights-holders and duty-bearers, which is why there are severe problems when judicial systems are politically co-opted. But there is no International Human Rights Court. And the Human Rights Council is certainly not a court. It is a forum of states – a political body – that purports to be guided by legal principles.
The body of human rights law that the Human Right Council is designed to protect and promote deals with issues that are at the heart of the relationship between a government and its people. Not surprisingly, states on the whole do not welcome that kind of external scrutiny. For the most part they are either deferential to other states, hoping for the same treatment when their turn comes; or, they side with their friends, for the same unprincipled reasons.
Yet recently, at least in the case of Libya, both the Human Rights Council and the Security Council appear to have embraced a surprisingly robust series of measures considerably friendlier to people than to states. Are we on the eve of a New York and Geneva spring?
Probably not. But the question does at least require of us a closer examination of two protection instruments used in that case by these UN institutions. The two are related. The first is the use of international military action as the intervention of last resort under the principle of responsibility to protect – what some are starting to call, or call again, the waging of humanitarian wars – and the second is the use of personal criminal responsibility under international law in the management of civil wars or repressions. Both, in their own ways, are preoccupied with the protection of civilians at great risk from their own governments; both ostensibly rest on humanitarian and legal concerns rather than on political ones; and both represent an erosion of state sovereignty in favour of a larger concept of human security. Both arose in response to the abysmal moral failures of the 1990s epitomized by the genocide in Rwanda and the ethnic cleansing in the former Yugoslavia, and both have enjoyed increasing but not universal support in recent years. Both could be corrupted by extraneous political considerations, and yet both inevitably apply in intensely political environments.
On 25 February 2011 the United Nations Human Rights Council adopted a resolution (A/HRC /S-15/L.1) in response to the uprising in Libya, and in particular to the brutal repression that the Gaddafi regime launched to crush it. The HRC used exactly the kind of language that you would expect to hear from a body entrusted with the promotion and protection of human rights worldwide. The Council strongly condemned the gross human rights violations perpetrated in Libya, including indiscriminate armed attacks against civilians; called on the government to meet its responsibility to protect its population; urged the Libyan authorities to respect the popular will, aspirations and demands of its people; and recalled the importance of accountability and the need to fight against impunity. On that basis, the Human Rights Council decided to dispatch an independent, international commission of inquiry to investigate all alleged violations of international human rights law and, where possible, make recommendations on accountability measures.
After originally peaceful protests had been met by violent state repression and had morphed into an armed insurgency, the situation in Libya worsened. On February 26, the UN Security Council adopted resolution 1970 imposing sanctions on Libya and referring the case to the International Criminal Court. On March 17 the Security Council adopted resolution 1973 imposing a No-Flight Zone and authorizing “all necessary measures” short of occupation to protect civilians in Libya.
It’s fair to say that this is in stark contrast to the Resolution adopted by the Human Rights Council at the end of the war in Sri Lanka in May 2009, when the Government of Sri Lanka inflicted a final defeat on the Tamil Tigers, or LTTE, after decades of bloody warfare. In that resolution, the Human Rights Council welcomed the efforts of the Government of Sri Lanka to bring permanent peace to the country, and condemned all attacks by LTTE on civilian populations. It made no reference to the gross violations of human rights and international humanitarian law that had been perpetrated by the government forces, rather it welcomed the government’s continued commitment to the promotion and protection of all human rights. Yet the last few months of the war saw several thousand civilians subjected to indiscriminate armed attacks by government forces in specially created 'No Fire Zones" in which they had sought protection and medical treatment.
This woeful response was particularly striking since the Council had just dispatched a Commission of Inquiry to look at possible violations of the same body of law, during more or less the same period of time, in relation to the Israeli war in Gaza where some 1300 people were killed. While an estimated 30,000 civilians were killed in a few months of operations on the beaches of Sri Lanka, the Security Council was never seized of the matter. So not only was there no ICC referral by the Security Council in the case of either Sri Lanka or the Gaza war, but the January 2009 attempt by the Palestinian Authority to seize the ICC prosecutor of the matter is still awaiting a response.
So in 2009 international protection was not forthcoming for the civilians of Sri Lanka, and accountability and justice were dispensed quite selectively. Are the robust responses of the Human Rights and Security Councils in the case of Libya a vindication of principles over interest, and a retreat of the political agenda in the face of legal and humanitarian claims, or should the situation be viewed in a slightly less triumphant manner?
As they currently stand, and at their sharpest edges, the responsibility to protect and international criminal justice cannot be sheltered from political considerations when they are administered by the quintessential political body: the Security Council. I have long advocated a separation of the justice and political agendas, and would prefer to see an ICC that had no connection to the Security Council. But this is neither the case nor the trend. As for RtoP, it is clear that military intervention for the protection of civilians must come with a Council mandate. The political input will therefore always be inevitable. In these circumstances, we must examine how to make the best of that situation.
The ultimate form of protection of civilians lies in the prevention, mitigation and resolution of deadly conflict. This can be achieved primarily by political initiatives and the development of systems of good governance, but humanitarian considerations play a large part, as do issues of responsibility and accountability. Indeed the RtoP doctrine includes – in line with the genocide convention – an obligation to punish when prevention has failed. The pursuit of all three desirable goods – peace, safety, justice – must therefore be choreographed to maximize the saving of civilian lives. And this, in turn, requires preserving to the maximum the integrity of all three processes: humanitarian, judicial and political.
Responsibility to Protect and the requirement of proportionality
The responsibility to protect, a significant transformation of the preceding right of intervention, essentially asserts that states have a responsibility to protect their people from mass atrocities (originally expressed in terms of genocide, war crimes, crimes against humanity and ethnic cleansing) and that if a state is unwilling or unable to do so the responsibility falls onto the international community, acting through the United Nations, to extend that protection.
The doctrine was slow to take roots, from its first articulation in the 2001 Canadian sponsored International Commission on Intervention and State Sovereignty. This may have been due to the release of the Commission’s report barely a month after September 11 2001, when international attention was shifting from the humanitarian issues that had dominated the 1990s to the emrging war on terror. Maybe fearful of the resistance by the strong adherents to the shield of state sovereignty, many proponents of the doctrine emphasized the state, rather than the international responsibility, and also downplayed its more intrusive aspect, that of military intervention, rather emphasizing softer preventative measures in the hope of gaining broad acceptance amongst UN member states. This was largely successful as evidenced by the language in the 2005 World Summit Outcome Document, and many subsequent references, in UN documents, at least to the state responsibility part of the doctrine. And finally, not only acceptance but application came in resolution 1973 authorizing military intervention in Libya (though it is interesting to note that the three words – responsibility to protect – were only ever used, in Resolution 1970, in relation to Libya’s own responsibilities towards its people).
However, the years of emphasis on anything but military action left the application of that part of the principle – the hardest part – underdeveloped. In the report of the International Commission that articulated the R2P principle, military intervention is advocated not only as a last resort but also after a series of checks have been put in place. The report suggests that “for military action ever to be defensible the circumstances must be grave indeed”, adding that “less intrusive and coercive measures should always be considered before more coercive and intrusive ones are applied”. Importantly, the Commission elaborated a six step process to be followed when international military intervention is being considered.
What the Libya case illustrated is that when such protocols are not well developed, and when time is of the essence, crucial steps may be overlooked. The most important one, in my view, is not only that military action should be a last resort, but that it should be subjected to a test of proportionality, and that this test should be applied on an ongoing basis.
A proportionality test could be broken down into three components. First, it would require that the threat to civilian lives be grave and imminent; second, that the least intrusive means capable of having a real chance of protecting civilians be employed; and finally that the negative consequences of military action not outweigh the anticipated benefits. Each step, particularly the first one, would have to be based on some credible evidence, not on mere assumptions. Some would argue that when Gaddafi’s troops were in the outskirts of Benghazi ready to attack there was no time for such a comprehensive assessment. This of course must be flatly rejected. There had been discussion of a “no flight zone” way before Gaddafi reached the doorstep of Benghazi. The effectiveness of such a measure had to be assessed, as well as the need for more expansive actions, and their consequence, both operational and political, should have been put into the balance, publicly, well before 5 minutes to midnight.
But even very late in the process, and in circumstances of extreme urgency, complex and difficult decisions can and must be made within a clear framework. It may appear callous to weigh the imminent potential loss of civilian lives against other considerations, such as the potential larger loss of lives associated with prolonged military engagement, or a reduction in the possibility of ending the war altogether. But this is precisely what must be done, governed by a pre-established policy framework that will prevent, literally, people shooting from the heart.
And once the intervention takes place, necessary at the time, the need to maintain, reduce or escalate military action must be assessed, against the same criteria, on an ongoing basis. This is where the intervention in Libya is perhaps getting itself into conceptual difficulties. SC Resolution 1973 authorizes “ any necessary measures” to protect civilians. It assumes, not unreasonably, that Gaddafi poses a threat to his citizens - indeed, he has posed such a threat for many of his 40-plus years in power-. Logic would suggest that Gaddafi should be removed from power in Libya to ensure the safety of non only Libyans who took up arms against the regime, but also of non combatants likely to be subjected to retaliation by Gaddafi should he manage to crush the rebellion. Yet far from embracing that logic overtly, and under the permissive principle of the Responsibility to Protect doctrine, western leaders acting under the Security Council Resolution keep insisting, on the one hand, that the bombing is not about regime change but, on the other, that it can only end once the regime has changed. As talk of arming the rebels intensifies, as the civil war deepens, and as discussions develop as to what, precisely, constitutes a ‘foreign occupation force of any form’, I suspect we will see the continued blurring of humanitarian principles and political objectives, in my view to the detriment of both.
International criminal justice and the independence of the ICC
The 26 February Security Council’s decision to refer the situation in Libya to the International Criminal Court is hugely significant. This is an important development for a number of reasons. First, it marks only the second time that the Council has made such a referral – the first occasion coming in a 2005 resolution on Darfur – and the first time that a referral has been unanimously accepted. China and the US, both of whom abstained on the Darfur resolution, voted in favour of the Libya referral.
Second, the Libya referral is noteworthy for the speed with which it was made. In the case of Darfur, the Security Council first established an International Commission of Inquiry to investigate the situation, which worked for three months between October 2004 and January 2005. A further two months passed before the Security Council referral – which eventually included a mandate to investigate events going back to 1 July 2002 – the date on which the Court’s jurisdiction began. In short, given that the Darfur conflict began in earnest in early 2003, it took two years and an international inquiry before the Security Council made its referral. Another two months would pass before the ICC formally opened its investigation.
In comparison, the Libya process has, so far, progressed at great speed. The decision to refer the situation to the ICC was taken less than two weeks after Gaddafi’s crackdown began, and without waiting for the results of a Human Rights Council inquiry, announced just the day before. The ICC seems similarly keen to forge ahead: on 2 March, the ICC Prosecutor announced that, following a preliminary investigation, he believed that there was sufficient evidence to begin a full-scale investigation. The speed of this response is unprecedented: it normally takes months for a preliminary investigation to be concluded – in this case, it took only four days. Then on April 5, the Prosecutor made a public announcement that he has evidence showing that Gaddafi intended to use force against his own people even before the protests were launched. The Prosecutor is scheduled to appear before the Security Council on 4 May, little over two months after the initial referral, and is widely expected to request that arrest warrants be issued.
Third, this decision comes at a time when the role of the ICC is under scrutiny elsewhere. The Kenyan government has launched a campaign to suspend the Court’s investigation of the 2007-8 post-electoral violence that claimed almost 1,300 lives, a campaign which has received strong endorsement from the African Union. Whether or not the campaign succeeds – and it is hard to see, legally, how it will – the strength of African support for the Kenyan position raises serious questions about the role of the ICC. Further questions have been raised in relation to the case against Sudan’s President Omar al-Bashir. Despite having been indicted in July 2008, al-Bashir has received the backing of both the Arab League and the African Union. The situation has become more complex still in recent months, as reports have emerged that several states, including France and the US, are considering supporting a deferral of al-Bashir’s indictment, in return for his cooperation on the secession of South Sudan, and possibly on a final peace agreement with the rebels in Darfur. In the light of these concurrent developments, it is perhaps surprising that all three African states currently sitting on the Security Council – South Africa, Gabon and Nigeria – voted in favour of the Libya referral.
The increasing entanglement of justice and politics is unlikely to be good for justice in the long run. To make criminal pursuits subservient to political interests, activating and withdrawing cases as political imperatives dictate, is unlikely to serve the interest of the ICC which must above all establish its credibility and legitimacy as a professional and impartial substitute for deficient national systems of accountability. I’m not sure that partnership with the Security Council is the best way to attain these objectives.
Conflict prevention as the overarching objective
Humanitarian objectives are critical to the protection of civilians during armed conflicts, and more broadly at time of civil unrest, or during waves of criminality or terrorism, particularly when states of emergency and intense forms of repression are resorted to. Judicial objectives may also play a role in restraining those with power from the worst excesses but, in reality, it is for the most part a backward-looking tool, more than a forward-looking one. When the stakes are high and the institutions weak, deterrence can be easily overrated. In short, ultimate protection must surely come from the prevention and peaceful resolution of conflicts and the application of the rule of law.
These are not distant lofty objectives. They can be pursued both domestically and internationally, and they require awareness of the early indicators of danger, and political will to intervene in a preventive fashion. This is currently severely lacking in the international institutional system. Properly conceived, the Human Rights Council could and should act as the forum of choice for the prevention of deadly conflict. Few of the catastrophic attacks on civilians in recent times have not been preceded by increasingly serious violations of human rights. By the time the Security Council can act on a threat to international peace and security, the situation has usually degenerated to the point of calling for coercive measures. But earlier on, other forms of prevention might have been helpful.
Consider the case of Libya. The Human Rights Council examined the case of Libya under the Universal Periodic Review in November 2010. While the massive protests that shook North Africa were not easily predictable last fall, the comments made regarding Libya’s human rights performance were hardly indicative of what we are now hearing of the homicidal nature of the Gadaffi regime. The report of the UPR proceedings (A/HRC/16/15, 4 January 2011) notes that 46 delegations made comments; several noted with appreciation Libya’s commitments to upholding human rights on the ground. For instance, Qatar praised Libya’s legal framework for human rights protection; Australia and Canada welcomed improvements in human rights protection in Libya before expressing some concerns regarding specific issues. Numerous recommendations were made and accepted by Libya, ranging from adopting legislation to abolish torture to adopting a national strategy to combat discrimination against women. Nothing in that document would have given any serious reason to believe that the Libyan population had cause to rise in rebellion against oppression, nor that such an uprising would be met by deadly force and illegal reprisals.
Conclusion
Ongoing events in North Africa and the |Middle East are the inspiring story of ordinary people taking back their dignity from those who oppressed and exploited them. It is above all a story of empowerment and of justice. How successful it will be remains to be seen. Many of the claims were economic; many of the responses have been political, and the economic grievances may remain unanswered. Reform may end up being cosmetic and deceptive.
More broadly, we must ask whether we are encountering a new form of conflict, characterized by its popular, national character, with people rising to overturn abusive authoritarian regimes, with, at least on the surface, no political ideology other than rebellion against economic and political injustice. The speed at which the idea of popular empowerment in the face of apparently impregnable fortresses of power has taken place may signal a new era in power dynamics.
What will the reconstruction chapters look like? Will this be a new era of constitutionalism, of rule of law? Will democracy completely redefine itself, particularly in cases where dictators had been elected? Or are we likely to enter a world of truly failed states, with authority so repudiated that no new form of governance can emerge? Is post-authoritarianism likely to be like post-colonialism, with a generation in danger of mimicking the politics of the abusers?
The 2011 World Bank Development Report on Conflict, Security and Development, is timely; it emphasizes justice and jobs as key to security, and institutions as its guarantor. It also stresses that institution-building takes time and money; decades, not months, and I can add certainly more than the 1% of aid money that the US is currently spending in Afghanistan in the justice sector. The mere fact that the Bank undertook that study is significant. Will others follow suit? Is the Security Council being revolutionized by its willingness to embrace and apply the doctrine of R2P and referrals to the ICC? Or have we just witnessed the high water mark of humanitarianism? Have states, particularly members of the Security Council, accepted the proposition that the application of international law and good international citizenship – like corporate social responsibility – is in fact in their national interest? Or will they quickly return to the dichotomy between values and interest and make the predictable choice?
All may depend, in the end, on whether people will insist on being masters of their own destiny. When they do, they are unstoppable. If anything, they are contagious. And they are claiming nothing more than that human rights be protected under the Rule of Law.
